Opinion
No. 01-04-01028-CV
Opinion issued October 20, 2005.
On Appeal from the 10th District Court Galveston County, Texas, Trial Court Cause No. 03CV0484.
Panel consists of Justices NUCHIA, JENNINGS, and HIGLEY.
MEMORANDUM OPINION
Appellant, Richard C. MacDonald, challenges the trial court's rendition of summary judgment in favor of appellees, William S. Warner, M.D. and Romeo Castillo, M.D., in his suit alleging medical malpractice. In two points of error, MacDonald contends that the trial court erred in granting Warner's and Castillo's summary judgment motion because Warner and Castillo failed to establish, as a matter of law, their affirmative defenses under section 101.106 of the Texas Tort Claims Act (the "Act") and section 312.007 of the Texas Health and Safety Code. We affirm.
The version of section 101.106 in effect at the time of trial has since been amended. See Act of May 17, 1985, 69th Leg., ch. 959, § 1, 1985 Tex. Gen. Laws 3305 (amended 2003) (current version at Tex. Civ. Prac. Rem. Code § 101.106 (Vernon 2005)). The amended version of section 101.106 applies to cases filed on or after September 1, 2003 and, therefore, we review this appeal under the former law. See Act of June 2, 2003, 78th Leg., ch. 204, § 23.02(d), 2003 Tex. Gen. Laws 886, 899.
Tex. Health Safety Code Ann. § 312.007 (Vernon 2001).
Factual and Procedural Background
In April 2001, MacDonald was treated at the UTMB-Galveston ("UTMB") emergency room for a wound to his foot. Warner, a UTMB faculty member working in the emergency room, and Castillo, a UTMB resident on rotation in the emergency room, examined and treated MacDonald. MacDonald filed suit against UTMB, Warner, and Castillo on April 25, 2003, alleging that "UTMB, its agents, servants, and employees were negligent in failing to promptly and properly perform the necessary surgical procedure and/or in failing to properly and promptly refer [him] to the proper orthopedic physician," and that such negligence caused him personal injuries.
UTMB filed a plea to the jurisdiction and motion to dismiss and sever, which the trial court granted. Warner and Castillo subsequently filed a summary judgment motion, contending that MacDonald's claims against them individually were barred by section 101.106 of the Act, or, alternatively, that MacDonald's claims were barred by section 312.007(b) of the Texas Health and Safety Code. Without specifying the grounds on which it relied, the trial court granted Warner's and Castillo's summary judgment motion.
It does not appear that MacDonald appealed the trial court's order granting UTMB's plea to the jurisdiction and motion to dismiss and sever.
Standard of Review
To prevail on a summary judgment motion, a movant has the burden of proving that it is entitled to judgment as a matter of law because there is no genuine issue of material fact. Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985); Farah v. Mafrige Kormanik, P.C., 927 S.W.2d 663, 670 (Tex.App.-Houston [1st Dist.] 1996, no writ). A movant must either negate at least one essential element of the non-movant's cause of action, or prove all essential elements of an affirmative defense. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). In conducting our review, we assume that all evidence favorable to the non-movant is true and indulge every reasonable inference and resolve all doubts in favor of the non-movant. Nixon, 690 S.W.2d at 548-49. When a trial court's order does not specify the grounds under which summary judgment was granted, we will affirm the judgment on any meritorious theory advanced in the motion. Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex. 1995).
Governmental Immunity
In his first issue, MacDonald contends that Warner and Castillo failed to establish their affirmative defense under section 101.106 of the Act as a matter of law and that there was a genuine issue of material fact on one or more elements of their affirmative defense under section 101.106.
On appeal, MacDonald also contends that neither Warner nor Castillo pleaded either of the affirmative defenses asserted in their motion for summary judgment. It is true that a party relying on an affirmative defense must plead the defense. Tex. R. Civ. P. 94. However, "an unpleaded affirmative defense may also serve as the basis for a summary judgment when it is raised in the summary judgment motion, and the opposing party does not object to the lack of a rule 94 pleading in either its written response or before the rendition of judgment." Roark v. Stallworth Oil Gas, Inc., 813 S.W.2d 492, 494 (Tex. 1991); see also Segal v. Emmes Capital, L.L.C., 155 S.W.3d 267, 273 n. 6 (Tex.App.-Houston [1st Dist.] 2004, pet. abated) (recognizing that principle of trial by consent of unpleaded matters applies in summary judgment context). Here, while Warner and Castillo did not specifically plead section 101.106 in their answers, they asserted this defense in their motion for summary judgment. MacDonald contends that he objected to Warner's and Castillo's failure to plead section 101.106 in his summary judgment response. Our review of the record reveals that, in his response, MacDonald specifically objected that "there is no pleading or proof that the requisites of Chapter 312 of the Texas Health and Safety Code have been met." MacDonald's objection to the alleged pleading deficiency was clearly directed at the second ground asserted in Warner's and Castillo's motion, section 312.007(b) of the Texas Health and Safety Code; MacDonald did not object to Warner's and Castillo's failure to plead section 101.106. Because MacDonald failed to raise the pleading deficiency before the trial court rendered summary judgment, he may not raise it on appeal. Id. Furthermore, section 101.106 bars any action against governmental employees once judgment has been rendered in favor of the governmental employer. Here, once the trial court granted UTMB's plea to the jurisdiction, MacDonald's claims against Warner and Castillo were statutorily barred.
Former section 101.106 provided:
A judgment in an action or a settlement of a claim under this chapter bars any action involving the same subject matter by the claimant against the employee of the governmental unit whose act or omission gave rise to the claim.
See Act of May 17, 1985, 69th Leg., ch. 959, § 1, 1985 Tex. Gen. Laws 3305 (amended 2003) (current version at Tex. Civ. Prac. Rem. Code § 101.106 (Vernon 2005)).
Under section 101.106, when a claim against a governmental entity is dismissed on grounds of governmental immunity, any claims involving the same subject matter brought against employees of that governmental entity must also be dismissed. Harris Co. v. Sykes, 136 S.W.3d 635, 640-41 (Tex. 2004); Dallas Co. Mental Health and Mental Retardation v. Bossley, 968 S.W.2d 339, 344 (Tex. 1998); Dalehite v. Nauta, 79 S.W.3d 243, 245-46 (Tex.App.-Houston [14th Dist.] 2002, pet. denied). MacDonald does not dispute that the trial court's order granting UTMB's plea to the jurisdiction constitutes a judgment under section 101.106 and that, pursuant to section 101.106, this judgment bars any claims against governmental employees involving the same subject matter as the claims made against UTMB. However, MacDonald does dispute whether Warner and Castillo established their status as governmental employees entitled to immunity under section 101.106. "Employee" is defined to mean
a person, including an officer or agent, who is in the paid service of a governmental unit by competent authority, but does not include an independent contractor, an agent or employee of an independent contractor, or a person who performs tasks the details of which the governmental unit does not have the legal right to control.
Tex. Civ. Prac. Rem. Code Ann. § 101.001(2) (Vernon 2005).
In support of their motion for summary judgment, Warner and Castillo attached copies of excerpts from their depositions as well as an affidavit from William Naron, the records management analyst in the finance-employee records department of UTMB. Warner testified in his deposition that he was a UTMB faculty member when he treated MacDonald at UTMB. He testified that, as a faculty member at UTMB, he would oversee the care of patients who came into the UTMB emergency room. He confirmed that his signature appeared on MacDonald's emergency room records. Castillo testified in his deposition that he was employed by UTMB at the time he treated MacDonald in the UTMB emergency room, and that his treatment of MacDonald was performed in his capacity as a UTMB employee. Naron testified that he was the UTMB records management analyst in the finance-employee records department and that he had personal knowledge of the facts stated in his testimony. Naron further testified that Warner was a paid employee at UTMB from September 4, 1999 to July 21, 2003; that during that time UTMB employed Warner as an emergency room faculty physician; that Castillo was a paid employee of UTMB from October 4, 2000 to August 12, 2003; and that during that time UTMB employed Castillo as a resident in family medicine.
MacDonald contends, for the first time on appeal, that Naron's affidavit is conclusory. We agree that this objection may be raised for the first time on appeal. Green v. Indus. Specialty Contractors, Inc., 1 S.W.3d 126, 130 (Tex.App.-Houston [14th Dist.] 1999, no pet.). However, we disagree with MacDonald's contention that the affidavit was conclusory. Naron's testimony was furnished in his capacity as the records management analyst in the finance-employee records department at UTMB. Naron attested that he had personal knowledge of the facts set forth in his testimony, he detailed the dates on which Warner and Castillo commenced and completed employment at UTMB, he identified the formal job titles for Warner and Castillo while they were at UTMB, and he stated that both Warner and Castillo were employed and paid by UTMB. Moreover, even assuming that Naron's affidavit was not competent summary judgment evidence, other evidence presented by Warner and Castillo, which was uncontroverted, established Warner's and Castillo's employee status as a matter of law.
MacDonald attached Warner's and Castillo's answers to interrogatories to his summary judgment response. Warner stated in his answers to interrogatories that his previous employer was "UTMB, Division of Emergency Medicine." In response to an interrogatory asking Warner to identify any physicians whom he supervised during MacDonald's treatment, including their job title and employer, Warner answered Castillo, "Family Medicine Resident, UTMB, Galveston." Castillo stated in his answers to interrogatories that he was the emergency room intern who examined and treated MacDonald, and Castillo described his "employment relationship" with UTMB as "a family medicine intern completing his rotation in [UTMB's] emergency room." MacDonald also attached a letter dated October 28, 1999 from UTMB to Warner appointing Warner as a part-time associate member of the medical staff at UTMB, and noting that his appointment had been approved by the executive committee of the medical staff and by the executive vice chancellor for health affairs of the University of Texas System. The letter stated that Warner's appointment was for a period of two years. MacDonald also attached a copy of the "University of Texas Medical Branch House Staff Agreement," appointing Castillo as a resident/fellow at UTMB at the postgraduate year 1 level and stating, among other details, that the appointment would begin on October 4, 2000 and end on October 3, 2001, that Castillo would receive salary and benefits "as established by UTMB for its house staff" subject to satisfactory participation in the residency program, that the salary established by UTMB was subject to certain deductions, and that additional information regarding salary would be found in the House Staff Manual. The agreement stated that, as a house officer of UTMB, Castillo would be expected "to perform such duties and responsibilities as may be assigned" and that his performance would be subject to the rules and regulations of the University of Texas System and the local rules and regulations of UTMB contained in the "Handbook of Operating Procedures." The agreement further provided that the "position description and basic responsibilities of a resident for which UTMB will provide an opportunity are found in [the appendix] of the 'UTMB Hospitals — General Information for House Staff.'" Finally, the agreement provided that Castillo's performance would be reviewed and evaluated by faculty at least semiannually, that house staff could be dismissed from the program during the term of the agreement upon the determination of the faculty that their level of performance or professionalism did not meet certain standards and was unsatisfactory, and that any such dismissal would be handled in accordance with UTMB procedures. The agreement was signed by the program director of the family medicine residency/fellowship at UTMB and was also signed by Castillo, as "house officer." Finally, MacDonald attached a copy of the Bylaws and Rules and Regulations of the Medical Staff for UTMB, which contained sections on medical staff membership, corrective action, and suspension.
After reviewing this summary judgment evidence, we conclude that MacDonald's contention that the evidence revealed almost nothing about the nature of the employment relationship between UTMB and Warner and Castillo is without merit. While the evidence did not provide exact details on how Warner and Castillo were paid, the evidence conclusively established that UTMB was the governmental entity that compensated Warner and Castillo for their medical services performed at UTMB. This evidence is wholly uncontroverted by MacDonald. Thus, we hold that this evidence establishes as a matter of law that Warner and Castillo were employees of UTMB and, as such, were entitled to immunity under section 101.106.
We must also reject MacDonald's contention that Castillo and Warner should not be entitled to immunity under section 101.106 because there is no proof that UTMB controlled the details of their work and because their treatment of MacDonald required the exercise of discretionary decision-making. The Texas Supreme Court addressed and rejected similar arguments in Murk v. Scheele, 120 S.W.3d 865 (Tex. 2003). In Murk, the plaintiff filed a medical malpractice suit against the University of Texas Health Sciences Center and two of his treating physicians, one a UT faculty member and the other a UT graduate student and a resident. Id. at 866. The trial court dismissed UT on grounds of immunity, and both physicians filed motions for summary judgment based on immunity under section 101.106. Id. The plaintiff argued that Murk, the UT faculty member, was excluded from the statutory definition of "employee" under the Act because his exercise of independent professional judgment as a treating physician was outside UT's right of control. Id. at 867. Finding that the plaintiff's argument "[swept] far too broadly," the Texas Supreme Court observed that "[t]he Act's definition of employee does not require that a governmental unit control every detail of a person's work." Id. The court noted that the summary judgment evidence showed that Murk practiced for UT as a member of its faculty, that he was compensated by UT, and that his medical decisions in the treatment of patients were subject to regimens prescribed by UT. Id. While recognizing that a physician was required to make medical decisions using professional judgment, the court held that the necessity for that judgment did not, by itself, vitiate UT's right to control the details of Murk's practice. Id.
The supreme court in Murk found that the resident had failed to establish that he was in UT's "paid service," and thus was not entitled to summary judgment as an employee of UT. Id. at 867. The evidence showed that the only monetary benefit provided to the resident by UT was medical professional liability insurance coverage and that the local hospital district reimbursed UT for that coverage. Id. Unlike the evidence presented by the resident in Murk, Castillo presented undisputed evidence establishing that he was in UTMB's "paid service."
Similarly, in Dalehite, the plaintiff argued that the defendant-physician was not a governmental employee covered by section 101.106 because UTMB, his employer, did not control the details of his diagnosis or treatment. 79 S.W.3d at 245-46. In reviewing the trial court's order granting summary judgment, the court noted that the physician had presented the trial court with undisputed evidence that he was a chairman of the UTMB department of neurosurgery, worked as a full-time professor at UTMB, treated patients and instructed medical students at UTMB, signed an employment contract with UTMB, and was paid a salary and provided benefits and insurance by UTMB. Id. at 245. Our sister court held that this evidence established that the physician was an employee of UTMB, and further held that the physician's exercise of discretion in diagnosing and treating patients did not make him an independent contractor. Id. at 245-46. Like the courts in Murk and Dalehite, we reject the argument that Warner and Castillo may not be characterized as employees under section 101.106 because they were required to exercise discretion and use independent judgment in making decisions concerning MacDonald's diagnosis and treatment.
Our sister court also noted that "it appears from a number of cases that most Texas courts assume that physicians employed by a government hospital are included within section 101.106." Dalehite v. Nauta, 79 S.W.3d 243, 245 (Tex.App.-Houston [14th Dist.] 2002, pet. denied).
Having held that Warner and Castillo established their affirmative defense under section 101.106 of the Act as a matter of law, we overrule MacDonald's first issue.
Conclusion
Having held that summary judgment was properly granted under section 101.106 of the Act, we need not address Macdonald's second issue. We affirm the judgment of the trial court.